A ROUGH RECEPTION
Law firm receptionist loses disability discrimination claim
Earlier this month, Croydon Employment Tribunal (ET) handed down its reasoning in a case concerning Kent-based law firm Wykenham-Hurford Sheppard & Son Limited (WHS) which had dismissed the Claimant, Miss Earle, from her receptionist post when she was just 8 days into her role. EMPLOYMENT TRIBUNALS (publishing.service.gov.uk)
Miss Earle was a contract worker placed with WHS by employment agency Job Finders. She was hired on an initial 3-month fixed term contract to fill the role of Receptionist Administrator. WHS dismissed Miss Earle on capability grounds –advising her that she was unable to perform the role to the required standard.
Miss Earle claimed that she performed her role competently and that the real reason her contract was terminated stemmed from her disability (being back, shoulder and neck pain). She subsequently brought claims in the ET for:
Unfair dismissal (albeit this was withdrawn at a Preliminary Hearing)
direct disability discrimination
discrimination arising out of disability
failure to make reasonable adjustments
Harassment related to disability
At the hearing, Mrs Reeve, one of WHS’ Directors, explained some of the issues with Miss Earle’s performance, which included her inability to pronounce the name of the firm correctly when answering the phone, and also her insistence on putting callers through to fee earners directly, and interrupting their work, when the firm’s practice was for callers to be put through to a member of the fee earner’s support team.
The Tribunal found Mrs Reeve to be a more credible witness than the claimant, who they found to be someone who was willing to ‘exaggerate and embellish her account of events in an attempt to manufacture a weightier claim’; early on in the proceedings, the Tribunal had heard how Miss Earle had described a ‘few dry leaves’ on the floor near the entrance of WHS as a ‘a health and safety hazard and a trip and fall risk’.
The Tribunal also heard how Mrs Reeve was unwilling to follow instructions from WHS, and to accept her shortcomings.
Disabled status
When deciding if Miss Earle was a disabled person under the Equality Act 2010, the Tribunal had to consider if her back, shoulder and neck pain had ‘a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities’. It decided that it did not, and that her evidence was lacking in this regard, commenting:
‘Miss Earle’s evidence barely touched upon the effect her back, shoulder and neck problems have on her ability to carry out day to day activities. She said that she cannot perform day to day tasks when the pain is severe, but if that was the case one would expect to see this supported by medical evidence. No medical evidence was produced by Miss Earle in support of her claim.’
Miss Earle directed the Tribunal to a letter she had received from the DWP in regard to a Personal Independence Payment (PIP). Miss Earle was arguing that the letter proved she was disabled because such payments are made to people who have a disability. The Tribunal did not however accept this, stating ‘it is a matter of law for the Tribunal to determine whether a claimant is disabled, having considered all of the evidence produced on the issue. The fact someone may be or have been in receipt of a PIP is not determinative of the issue of disability.’
As Miss Earle was unable to establish disability status, her claims inevitably failed, but the Tribunal commented that even if she were disabled, they did not accept that things had happened as she had alleged, citing her credibility as an issue.
Commentary
An additional positive for WHS in this case was that it did not have the added headache of an unfair dismissal claim to contend with, given Miss Earle’s short service.
Had this course of events taken place under a new Labour government, WHS would potentially have had a lot more work to do before getting to the point of safely dismissing Miss Earle – perhaps going through a formal performance improvement process and showing that it had given her the opportunity to improve. We will however have to wait to see what any new legislation says regarding short service dismissals and probationary periods – Labour has promised that employers will still have the flexibility to dismiss employees in their probationary period, if they are genuinely not right for the role.
A potential outcome of having day 1 unfair dismissal rights is that we will see an increase in ‘standalone’ UD claims, as claimants will not have to rely on their day 1 discrimination rights to bring a claim. Alternatively, we will see claimants like Miss Earle simply adding on unfair dismissal claims to discrimination claims, meaning that hearings are longer, evidence requirements are more substantial, and the costs are inevitably higher.